Staffing companies facing more liability for safety

Over the years, whenever federal regulators charged a company with health and safety violations, the responsibility would fall on the host company even if temporary workers were on site.

The general thinking was that it was the host company and not the staffing firm that had control over the machines, the work site and how the work gets done, said Matthew Deffebach, an employment lawyer at Haynes Boone.

But that responsibility has shifted over the past couple of years as the Occupational Safety and Health Administration launched an enforcement initiative aimed squarely at the staffing industry. In recent months, OSHA has levied fines and citations against personnel agencies for shirking what the agency believes is their joint-employer responsibility to keep all employees safe at work.

"That's a big change," said Deffebach, who hosted a recent lunchtime seminar on changes in health and safety regulations.

Among his clients who are staffing firms, he said, "It's definitely a concern."

While the directive hasn't received as much attention as other OSHA initiatives aimed at cutting the number of fatalities in the oil patch and reducing workplace violence, the fines and citations, including two in the Houston area, have caused employers to take notice.

Last month, the federal agency fined Louisiana-based Gardia Construction $4,900 and cited the company for failing to conduct frequent and regular inspections of the work site in which its laborers worked. One of Gardia's temporary workers was working in Katy when he fell 12 feet through a roof and was hospitalized with fractured arms and severe contusions.

The worker had requested a safety harness, which OSHA said had not been provided. The agency also levied a $362,500 fine along with seven safety violations against the host company Cotton Commercial.

Earlier this month, OSHA cited C&C Personnel for four serious violations, including failing to develop an energy-control program to disable potentially hazardous machinery at one of its client companies. The staffing firm provided Rock Wool Manufacturing with 53 temporary workers on a daily basis. Rock Wool, in turn, supervised and assigned duties to the workers.

The agency has proposed penalties of $64,350 against Alabama-based Rock Wool Manufacturing and $21,600 in penalties against Houston-based C&C Personnel.

None of the four companies returned calls from the Houston Chronicle for comment.

Staffing companies have responsibilities for training, James Shelton, compliance assistance specialist at OSHA in Conroe, said during his presentation at the Haynes Boone seminar. For example, staffing firms should know what chemicals their employees will be using so they can say: "You need these gloves."

Staffing firms will have to do more than show a 15-minute video on safety rules, he said.

It's hard to know exactly where one company's responsibilities end and another's begins, Deffebach said. For example, who is supposed to give the safety speech at the "tailgate meeting" that starts each day? he asked. The host employer? The staffing firm? Or both?

Shared responsibility on health and safety is nothing new for staffing agencies, said Stephen Dwyer, general counsel for the American Staffing Association in Alexandria, Va.

The association, which represents 1,700 staffing agencies, entered into a formal alliance with OSHA last year but has been making health and safety a priority since at least 2011, he said. The group has hosted seminars, issued bulletins and provided training help to its members to make sure their workers are safe on the job.

"Our position is co-employment is not something that should be feared," said Dwyer.

The decision by OSHA to view staffing firms as joint employers changes a long-standing employment relationship that used to put more distance, legal as well as practical, between a client company and its personnel supplier. That joint-employer relationship for health and safety purposes could also affect other employment relationships.

"If it's a joint employer for safety, why not for wages and other purposes?" asked Deffebach, who envisions a day when a clever lawyer uses evidence of joint-employer safety meetings to argue that the host employer is also responsible for paying back overtime wages or discrimination damages.

The elephant in the room is the independent contractor, he said, posing the question of whether host companies will end up sharing health and safety responsibilities with the contractors they hire.

L.M. Sixel writes about the economy and the workplace for the Houston Chronicle. She writes a weekly column called "Working" that appears each Thursday.

She started her newspaper career at the Beaumont Enterprise. Before that, she earned a Bachelor's degree in sociology from the University of Wisconsin-Madison and a Master's degree in economic history from the London School of Economics.